Khan, R (on the application of) v Secretary of State for the Home Department

A claimant seeking judicial review must give the court the full picture. The duty of candour may require the claimant to identify and explain the significance of an adverse document, rather than merely include it in a bundle. The duty continues throughout the proceedings.

Under rule 52.9(2) of the Civil Procedure Rules 1998, a knowingly advanced claim founded on a fatal factual inconsistency, followed by a failure to provide an available explanation, can constitute a compelling reason to set aside permission to appeal. Such applications should remain exceptional.

The court also stated that evidence of long residence cannot lawfully be excluded merely because it is not an official document. Its weight remains a matter for the decision-maker.

The appellant sought judicial review of the Secretary of State’s refusal of leave to remain based on 14 years’ continuous residence under the Immigration Rules and on article 8 of the European Convention on Human Rights. Permission was refused on paper and again by the Upper Tribunal, but Sullivan LJ subsequently granted permission to appeal.

A work-permit application relied upon by the appellant stated that he had worked in Pakistan during part of the claimed period of UK residence. That statement conflicted with a letter from the work-permit sponsor asserting that the appellant had resided at the sponsor’s property throughout that period. After the discrepancy was identified, neither the appellant nor the sponsor provided a witness statement explaining it.

The Secretary of State applied to adduce further evidence and to set aside permission under rule 52.9 of the Civil Procedure Rules 1998. The court also considered whether the Secretary of State should be debarred for filing her skeleton argument late and, contingently, the substantive immigration and article 8 grounds.

1. By a majority, permission to appeal was set aside. Beatson LJ, with whom Ryder LJ agreed, held that the unexplained conflict between the documents went to the essential factual basis of the continuous-residence claim. The appellant knew whether he had been in Pakistan during the relevant period. His continued failure to explain the discrepancy permitted the inference that he had knowingly pursued the residence application, judicial review and appeal on a fundamentally false basis. That was a compelling reason under rule 52.9(2) of the Civil Procedure Rules 1998: [2016] EWCA Civ 416, paras 47–52, 68, 70–73.

2. A judicial review claimant must ensure that the court has the full picture. Depending on the circumstances, disclosure of the document alone will not discharge the duty of candour. The claimant may have to identify an adverse passage and explain its significance, particularly in a document-heavy case or where the claimant possesses the relevant factual knowledge. The duty is continuing and includes reassessment of the claim’s viability. Ryder LJ agreed that misleading the court may arise through non-disclosure or through failure to identify the significance of a disclosed fact or document: paras 35–51, 71–72.

3. Longmore LJ dissented on setting aside permission. He agreed that the absence of an explanation meant that the continuous-residence claim had to fail, but considered that the relevant failure occurred after permission had been granted. In his view, dismissal of the appeal was the simpler course and applications to set aside permission should be discouraged: paras 74–79. Beatson and Ryder LJJ likewise emphasised that such applications should remain rare and be confined to clear cases.

4. The further evidence was admitted because it was highly relevant to whether permission should be discharged, had not been available when the Secretary of State made her decision, and had been disclosed in substance to the appellant months before the hearing without any evidential response: para 31. Debarring the Secretary of State for her late skeleton argument would have been disproportionate; the breach could instead be addressed through costs: paras 53–55.

5. Although unnecessary to the operative decision, all three Lords Justices agreed that the appeal would otherwise have been dismissed. A restriction accepting only official documents as proof of long residence was legally indefensible because neither legislation nor the Immigration Rules authorised it, and undocumented residents may lack official records. Nevertheless, the conflicting work-permit material and the negligible detail in the supporting letters made failure inevitable: paras 57–63, 69, 74.

6. The article 8 grounds would also have failed. The evidence disclosed no exceptional or compelling circumstances requiring leave outside the Rules. Paragraph A277C permitted the Secretary of State, from 6 September 2012, to apply paragraph 276ADE and Appendix FM to an earlier application: paras 64–67.

1. Court of Appeal (Civil Division): By a majority, set aside the permission to appeal granted on 25 February 2015. The court admitted the Secretary of State’s further evidence and ordered the appellant to pay costs on the standard basis. All three members stated that the appeal would otherwise have been dismissed: [2016] EWCA Civ 416.

2. Court of Appeal permission stage: Sullivan LJ granted permission to appeal on 25 February 2015 after Sir Stanley Burnton had refused permission on paper.

3. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Peter Lane refused permission following a hearing on 10 January 2014.

4. Permission on paper: Mr Fordham QC refused permission on 22 October 2013.